Under the agreement, Musicnotes has the right to display and sell downloadable digital versions of sheet music titles in the Zomba Music Publishing and Brentwood-Benson catalogues to users of the Musicnotes website around the world. Musicnotes Inc. already represents music published by Warner Bros. Publications, Universal Music Group, BMG Music Publishing, Peermusic, Universal Music Group, and Famous Music.

BillBoard asserts that Lawmakers Defend Uploader Bill, wherein it is claimed that there is a clarification posted online. Rep. Berman’s site does post the following, but no specific clarification that I can find…yet.

BitTorrent has caught on in recent months with people looking to trade large files online, whether legal or unauthorized. More efficient than older file-swapping programs such as Kazaa or Morpheus, it has become a particular favorite for people seeking video files such as films or TV shows.

The technology essentially works by cutting each large file into many tiny pieces. Computer users downloading a film, for example, receive the large file piece by piece, and in turn become separate distribution hubs for each individual piece as they receive it.

CDBaby wants to be the digital distributor of indie music artists into iTunes and elsewhere – via Slashdot. For $40 up front, you get 91% of the monies that flow back to CDBaby. Read the Slashdot comments to learn of other opportunities developing.

For me, it’s been the Conyers-Berman bill and the amount of (credulous) press it’s gotten, further legitimating perceptions that I believe are plainly wrong. Compounding this has been the way that the SCO case has blown up way out of proportion to the issues at hand (see Eben Moglen’s thoughts in this companion Furdlog entry). In Derek’s case, it’s the sudden flood of DMCA subpoenas in the wake of the removal of the stay on the Verizon decision, whose appeal is still pending.

The MIT and BU position (see this, again) that their privacy obligations are more stringently circumscribed by legislation than those of conventional ISPs is certainly a clever legal tactic, but it doesn’t give me a whole lot of confidence in the face of this onslaught.

While it’s easy to discount Conyers-Berman and the RIAA’s actions as know-nothingism in the first case and simple greed in the second, the degree to which these cases have resonated throughout society, leading to the kind of discussions that we see being played out, suggests that these conflicts are speaking to a far more fundamental set of issues than merely those actually being contested.

Deborah Stone’s Policy Paradox: The Art of Political Decision Making introduces the idea that many key policy conflicts arise out of the fact that the participants in the conflict have certain fundamentally different views of some of the key concepts that underly these issues, and that the apparent rigidity on both sides of the issues arise from their unwillingness to reconsider these fundamental views. She has four key questions that she uses to frame her discussion of many fundamental political issues:

What is distributive justice (i.e., equity in property holdings, etc.)? The confidence that allocations derive from a fair process, or the confidence that everyone receives a fair share of the available resources?

What is liberty? The freedom to dispose of one’s property as one likes, or the freedom from dire necessity?

What is property? An individual creation or a social creation?

What motivates people? Their needs or their aspirations?

Stone does not argue that these questions have right or wrong answers. Clearly, these are not the sort of questions that are susceptible to that sort of treatment. However, it is the case that many political positions derive from claims that are based on beliefs that yield “correct” answers to these questions, and that many complex policy arguments derive from positions built upon these beliefs. In effect, the answers to these and like questions can be used to outline the ideological basis for the positions that individuals take.

Stone argues that, generally speaking, those who take the first position cited in each of these questions would likely be a social conservative, while those taking the second position would likely be social liberals. The positions taken on each of her four questions are the fundmental axes of difference when certain classes of questions are up for discussion, and it’s only by attacking these fundamental issues, and by finding approaches that can be accommodated within them, that parties can hope to find workable compromises.

The question then becomes, what are the fundamental axes of ideological conflict in the problems we’re talking about here? Obviously, "property as a social construct"/"property as an individual creation" is a major axis, but there’s more to it than that. (I see that Donna’s citingDoc on this very idea.) Notions of the role of creativity & culture, ownership & responsibility and justice & equity are all somewhere at the heart of these conflicts. More critically, we seem to be reopening a question that was hot when I was a grad student: are technologies "good" and "bad," or are technologies merely a reflection of the social values underlying the motivations for their development?

Until we can sharply delineate the "conflict space" within which we are operating, we’re going to have a very hard time making any progress. All we’re going to be doing is conducting "a dialog of the deaf" while we keep bumping into the unspoken beliefs that underlie our differences.

We’ve got a long row to hoe, and, as Derek suggests, not a lot of time to get it right.

Addendum: I’ve now read Doc’s article. Interestingly, he touches on some of the topics I listed above. For example, the "Strong is good" doctrine is closely related to the "justice derives from fair rules" position.

But the kicker comes with his assertion that the answer will come, in part, from getting people to stop thinking that copyright is property. As Doc puts it:

I still think we lose in the short run as long as copyright (and, for that matter, patents) are perceived as simple property. Our challenge is to change that.

That is the challenge, but the problem is that it may very well be a lost cause. Why? Because of a logical error that is easy to make (and certainly to exploit) in this context. Remember one of Stone’s axes of conflict – is property a social construction, or is it the result of individual effort? Every piece of legal doctrine and history that we have (setting aside the natural rights movement for the moment) asserts that copyright is purely as social construction. But we also declare that, at least in an idealized sense, the things that we copyright are the result of an individual creator’s effort, putting us right into the heart of the ideology of the rugged American.

Creative expressions are the products of an individual effort. And the makers have the right to profit from them. Copyright is the instrument that we use to make sure they can do that – therefore copyright is property.

To beat this argument, therefore, the first task is to disprove the assertion/assumption that the products of creativity are the result of purely individual effort. And, while creators may offer lip service to the idea that they "stand on the shoulders of giants," they’re not going to give up this romanticized perception of what they do. Yes, creators are responsible for what they create, but the nasty reality is the fraction that they create is small compared with the foundation upon which their creations are built.

In fact, with the faulty construction of copyright, it’s easy to see how SCO’s argument works. (1) We added this creative bit to the Linux kernel, (2) we assert that it belongs to us, so (3) Linux belongs to us – (4) pay up!

That’s the fight – showing that all creative expressions are built upon a foundation of culture that belongs to EVERYONE. Yes, new creations have merit and, yes, there should be more creations – BUT you cannot claim the cultural underpinnings of your creation are now your property just because you added something to it.

Larry Lessig says it best – Disney has worked very hard to make sure that no one can do to Disney what Disney did to the Brothers Grimm. And stopping that process is going to depend upon being able to show that copyright as currently constructed is allowing the last person who touched the creation to claim that all the work that went before his little contribution now belongs to him. It doesn’t work that way with buildings or bridges or automobiles, and it shouldn’t work that way with creative works either. Just because you can’t see the contributions of culture doesn’t mean that they aren’t there, and it certainly doesn’t mean that they can be exclusively appropriated.

Although BuyMusic.com will offer a catalog of more than 300,000 songs from the five major record labels, users of the service will not necessarily have the freedom afforded customers of Apple’s iTunes service to transfer the music purchased to multiple computers and portable devices, or to burn it to compact discs.

More noxious are the platform-specific features. Here’s what I get when I go to the site:

Thank you for visiting BuyMusic.com.

In order to take full advantage of BuyMusic.com’s offerings you must be on a Windows Operating System using Internet Explorer version 5.0 or higher.

The Motion Picture Association of America has also developed a curriculum on copyrights for use in classrooms by Junior Achievement. The “Digital Citizenship” program covers the history of copyright and culminates with a nationwide contest in which students suggest ways to persuade peers that swapping illegal copies of music and movies is not only illegal, but wrong.

Eben Moglen, a professor at Columbia Law School and general counsel for the Free Software Foundation, told eWEEK in an interview on Monday that those business Linux users who are not modifying, copying or distributing the Linux kernel can not be targeted for copyright infringement.

“Possession of infringing material is not a copyright violation because the copyright owner doesn’t have an exclusive right to possess the work. The copyright statute gives the copyright holder exclusive power to copy, modify and distribute the work, so those people copying, modifying or distributing in violation of the owner’s exclusive rights are infringing. Those who aren’t copying, modifying or distributing are not in violation,” he said.

This all relates to the affirmative defenses laches, undue delay, waiver, and estoppel, which we just covered. They will be hard-pressed to explain how they had an employee contributing to the kernel a couple of years ago, which they apparently assigned him to do, and yet claim they didn’t know or didn’t approve. If they didn’t approve, why didn’t they do a thing to stop it back then? Stop it? It was his job, judging from his title and his job description. And for that matter, the announcement about JFS was public on IBM’s part, as we’ve seen, and Caldera didn’t bring a lawsuit to block it back when it happened. That’s the laches part.

As to waiver, allowing/condoning/permitting an action makes it hard to sue about the same action later. They are complaining that IBM contributed JFS to Linux, but their own employee, from this evidence, was involved in helping out. On the day IBM announced JFS was being given to Linux, Hellwig is listed as making five contributions to the kernel. All of this information is publicly available, so it was available to Caldera back when it happened.

Boston College and the Massachusetts Institute of Technology, citing concerns about student privacy, moved yesterday to quash subpoenas issued by the recording industry to discover the identities of students the industry says are illegally distributing copyrighted music.

[…] MIT and Boston College yesterday said that they support the rights of copyright holders and would comply with any subpoena that addressed their concerns about the proper notification of students and was filed "properly" in US District Court in Massachusetts, not in Washington D.C.

The RIAA has filed at least 871 subpoenas in US District Court in Washington this month, demanding information from universities and Internet service providers about users of the Internet file-sharing network KaZaA. MIT and Boston College said they are required under the Family Education Rights and Privacy Act to notify students before they release personal information such as names and addresses.

The company, which is at the heart of a controversial lawsuit over Linux code, said that it plans to offer licenses that will support run-time, binary use of Linux to all companies that use Linux kernel 2.4 versions and later.

The company said prices for the licenses for its Unix System V source code would be announced in the coming weeks. SCO is holding a press conference at 9 a.m. PT Monday to unveil more details of the program.

“Since the year 2001 commercial Linux customers have been purchasing and receiving software that includes misappropriated Unix software owned by SCO,” Chris Sontag, senior vice president and general manager of the company’s SCOsource intellectual property division, said in a statement. “We intend to provide them with choices to help them run Linux in a legal and fully-paid for way.”

If they’ve registered for copyright, then the source code must now be available to determine just what it is they are talking about, right?

Update: On my way to pick up lunch, I found myself realizing that the stunning story here is the claim by SOC that "it had received a copyright on its Unix source code…." That’s a pretty amazing claim, when you think about it. What code? None of the Berkeley trees? How has the Novell claim been resolved? In whose mind? And, without a court test, what’s it worth?

Given the arguments about what was actually sold to SCO (see this Findlaw article), their claim gets odder and odder, since two parties cannot "split" copyright – that’s what lawyers mean when they talk about "exclusive rights." The press conference should be particularly interesting. (This Cringely article is worth a reread in the interim.)

More on the freedom to tinker: Reverse Engineered 802.11b+ Drivers. As this comment (quoting the article upon which this Slashdot discussion is based) shows, the issues surrounding this problem are a little more subtle than most, bringing in the FCC among others.

For the project, more than 30 audio artists captured speech and music samples from commercials, public service announcements, campaign ads and other promotional spots, then rearranged them into short sonic collages that often subvert the source material’s original message. On one track, snippets excised from ads for over-the-counter drugs were reassembled into a horrifying litany of side effects, concluding “one daily dose provides 24 hours of headache, diarrhea and abdominal pain.”

The album was organized by Every Man, the online alias of Jay Kennedy, a 30-year-old computer systems administrator in Lakewood, Ohio, and a host of a weekly experimental show on a community radio station. Rather than overtly parodying advertisements he found most irksome, Mr. Kennedy said he decided to use them as the raw ingredients for creations that would be “far more palatable than something that’s shoving an ad message down your throat.”

Mr. Kennedy used the Internet to issue a call for contributions in early 2000. Most tracks were completed soon after, but it took nearly three years to raise the $2,000 it cost to manufacture 2,000 CD’s, as well as to find a duplication factory that would press the discs without having the proper legal releases for the audio samples.

Half the discs, he says, will be surreptitiously dropped, unpriced, into CD retailers’ bins; the rest will be given away. Mr. Kennedy says he expects most people to download the tracks from the Web site.

Mr. Kennedy picked the title – “Free Speech for Sale” – partly to suggest how words used for selling were being liberated.

Morpheus 3.2 users will be able to directly link to a worldwide network of public proxy servers. A proxy server acts as an intermediary between two Internet users so that one user does not know the identity of the other. Additionally, users of the new Morpheus 3.2 software can link directly to third party websites that publish “blacklists” of IP addresses, believed by its contributors, to be among those that are used to snoop into the privacy of users. If a user chooses to click on any of these blacklisted IPs, those IP ranges will be blocked from the users computer.

Derek and commenters seem to think that proxy servers might work, although the Verizon appeal is going to have a strong effect on the likely answer to the question.

D&M’s decision to alter its product represents what some observers consider a major shift in power toward providers of entertainment content and away from the manufacturers of devices that deliver that content to homes and the consumers who ultimately see it. If advertising revenues and program licensing fees are to continue to support content, entertainment industry executives argue, their interests must be accommodated.

Critics see this not as accommodation, but as capitulation.

“Companies are under considerable pressure to bow to the wishes of the entertainment industry. This is unfair and anticompetitive,” said Jeff Joseph, vice president and spokesman for the Consumer Electronics Association, a manufacturers’ trade group. “If advertisers and broadcasters are seeing their traditional business model threatened, then it would behoove them to consider alternative business models.”

[…] Program creators have argued that those delivering their copyrighted work, like makers of recording devices, have no right to distort it or make it easy for others to do so. “Companies that manufacture hardware must have a conversation with program providers who want to be assured that their programming will be handled in a certain way,” said Robert M. Schwartz, a lawyer representing some plaintiffs, including AOL Time Warner, in the Sonicblue suit.

Note that the "derivative works" argument is being used to defend commercials in television programs…..

I can’t post much today, but I have to track a few things before going back to work – the RIAA is certainly getting a response. It’s just not terribly clear that it’s to their benefit.

Personally, I’m making certain that I use the RIAA Radar site whenever I consider CDs anymore. Too bad, too – this one got a good review in The Globe. But, I can at least use Amazon to find out if I can buy a used copy – ‘first sale doctrine’ and all that.

From CNet News, a new test of the "safe harbor" provisions is pending, I see: P2P caching: Unsafe at any speed? (Do you notice the number of article titles including question marks seems to be on the rise?)

Last week, Stockholm-based Joltid said three major service providers in Europe licensed its PeerCache technology–software designed to reduce costs of network traffic by caching frequently traded digital files within file-swapping systems.

PeerCache is built to work for FastTrack, one of the most widely used P2P protocols and the underpinnings of such popular applications as Kazaa and iMesh. Joltid said its traffic on FastTrack protocols can account for nearly 70 percent of the network’s total bandwidth. PeerCache plugs in to the ISP network and temporarily caches FastTrack P2P traffic, helping to lessen the bandwidth burden.

[…] In the United States, copyright laws protect ISPs from liability for their users’ activities. With PeerCache software, ISPs would cache, or temporarily hold, digital copies of pirated files on their servers so they’re more easily accessible to traders on Kazaa and other FastTrack systems. But holding copies of copyrighted material could make ISPs accomplices in illegal file trading, at least according to an early survey by one recording-industry trade association.

“Just using the word ‘caching’ doesn’t mean that the service is automatically exempt from copyright liability,” according to a statement from the IFPI, the trade association representing the international recording industry.

Bit by bit, the lines between what the copyright cartel wants and what the ISPs want/are contracted to provide are getting brighter and brighter. The problem: will they become bright enough that we can have a real policy discussion, or will the question be pre-empted before a sensible discussion can be undertaken?

I drifted over to John Dvorak’s opinion site today, and found the typical stuff – how to attract readership/hits by being as provocative as possible. But the one from July 7 caught my eye: The Anonymity Doomsday Factor

The Recording Industry Association of America (RIAA) may become indirectly responsible for our inability to stop the next terrorist attack on the US. Hear me out on this one. The association’s recent move to bust individuals, mostly students, for music trading will spark a movement toward anonymous computing unlike anything we’ve ever seen. Already two anonymous music swapping systems have appeared: Filetopia and Blubster. This is just the beginning.

We can expect to see the development of new stealth technologies that will be used routinely by everyone. A massive trend toward true Net anonymity will have repercussions that are all bad. Child porn rings will be harder to uncover. E-mail sources will be harder to find. Spam will rule. Virus coders will remain in the shadows. Terrorism can flourish in such an environment. And the RIAA still won’t win the battle over file swapping. But it will have set off a bad chain of events.

The music industry has won at least 871 federal subpoenas against computer users suspected of illegally sharing music files on the Internet, with roughly 75 new subpoenas being approved each day, U.S. court officials said Friday.

[…] The RIAA’s subpoenas are so prolific that the U.S. District Court in Washington, already suffering staff shortages, has been forced to reassign employees from elsewhere in the clerk’s office to help process paperwork, said Angela Caesar-Mobley, the clerk’s operations manager.

[…]

Verizon, which has fought the RIAA over the subpoenas with continued legal appeals, said it received at least 150 subpoenas during the last two weeks. There were no subpoenas on file sent to AOL Time Warner Inc., the nation’s largest Internet provider and also parent company of Warner Music Group. [emphasis added] Earthlink Inc., another of the largest Internet providers, said it has received only three new subpoenas.

Another excellent find by Donna: Blogalogue of the Day – Solum and Petit contrast academic and practitioner perspectives on copyright. (Note: Blogger’s ability to cope with its permalinks seems to be a mess today – until it gets fixed, go to Solum’s weblog and look for the 7/16/2003 posting titled "Copyfights update")

Kevin Heller let me know that only a drug-related felony can limit eligibility for federal loans – see this, for example. So, that’s one agenda item to drop from the list of ACCOPS motivations – for the moment, anyway.

Idlewild is still waiting. Capitol, which puts out Radiohead’s records here as well as Coldplay’s, elected not to spend the several hundred thousand dollars it takes to get a single on radio playlists and give it a shot at the charts. So while Radiohead and Coldplay have both broken into the ranks of normal people and solidified near-superstar status with popular new records, Idlewild is trying to do it the old-fashioned way – by touring. In the bigger cities and some college towns – places where the quotient of music freaks is high – the group does well. It’s everywhere else in the great wide-open mallscape of the United States that it has problems.

“You start a rock band because you don’t understand how business works and you don’t want to understand,” Mr. Woomble said. “But then you find yourself awake at night analyzing how Coldplay got so popular here.”

And how, he neglected to add, his band has not.

I was all revved up to try to write something about how ACCOPS is a frightening demonstration of a typical, tragic problem in a lot of science & technology policy (a so-called "dialog of the deaf" – everyone talks, no one listens), and then I got this disheartening referral from a colleague suggesting a more depressing perspective (albeit from a magazine with an agenda) – Science Friction [pdf], an article on the increasingly poor position of the scientific community in today’s political climate, closing with this paragraph:

Ignoring expert opinion on matters of science may never cause the administration the kind of political grief it is now suffering over its WMD Iraq policy. But neither is it some benign bit of anti-elitist bias. American government has a history of investing in the capabilities and trusting the judgments of its scientific community–a legacy that has brought us sustained economic progress and unquestioned scientific leadership within the global intellectual community. For the short-term political profits that come with looking like an elite-dismissing friend of the everyman, the Bush administration has put that proud, dynamic history at real risk.

The problem with protecting artists that are ‘protected’ by the RIAA is this — They claim that unless you stop peer-to-peer file sharing, they will lose money, and therefore not have any money to invest in new artists. This is completely in line with their rather spurious logic that peer-to-peer file sharing reduces their revenues, but it’s okay; For the sake of this argument, I shall play along.

If you’re doing what they’ve asked you to do, and made a good-faith effort to stop peer-to-peer, please make them come to the table. Ask them what they are willing to do once you’ve ‘stopped the menace.’ Ask them their plans for once this ‘madness’ is over. Logic states that once peer-to-peer is effectively dead, their revenues will once again fly into the stratosphere, and money will be readily available to invest in more music. Maybe even unbelievably eclectic and dorky music such as mine. Somehow I sense that no such promise has been made.

Maybe I could justify this if the artists represented by the RIAA were being protected as well as they could be. Most artists I hear about don’t have a problem with protection, they have a problem with getting their fair share from other RIAA artists or getting paid in the first place. Maybe you could convince the RIAA member companies to make a good-faith effort to make sure their artists are taken care of.

Under a system deployed on the White House Web site for the first time last week, those who want to send a message to President Bush must now navigate as many as nine Web pages and fill out a detailed form that starts by asking whether the message sender supports White House policy or differs with it.

[…]

Jimmy Orr, a White House spokesman, described the system as an “enhancement” intended to improve communications. He called it a “work in progress,” and advised members of the public who had sensitive or personal matters to bring up with President Bush to use traditional methods of communications, like a letter on paper, a fax or a phone call.

Note that the famous Linn Skinner, Berman and Alec French’s favorite copyright infringement example, is represented. Her testimony is actually relatively brief, and recounts her experiences online trying to curb needlework copyright infringement – including an extensive appendix detailing the kind of online activity she found during her efforts. For more background on her tale, see these Furdlog entries: 2003 March 15, 2003 March 18 and 2003 March 19

Jana Monroe explains how much work the FBI has already put into this, while David Trust wants not only to get after the internet, but all mechanisms for making copies of photographs. And Maren Christiansen of Universal tells us that "piracy is the single greatest threat to America’s creative industries," as well as explaining how The Hulk got uploaded to the Internet 2 weeks before theatrical release.

But most importantly, note that Zoe Lofgren got her licks in for H.R. 1066, too!:

But I am becoming increasingly dismayed by the fact that this Subcommittee only examines digital issues from one perspective. We have had numerous hearings this year on how online piracy affects content owners. Today, we are having yet another one, with four witnesses who seemingly support the bill we are considering. Among them, we have a witness from Universal Studios, who will no doubt tell us of the devastating effect that online piracy is having on movie studios. But according to statistics I’ve seen, yearly domestic box office gross has increased every year since 1992, including an 8.6% increase last year to over $9 billion dollars.

If you want to see an industry in turmoil, don’t look to the movie industry, look to the technology industry. Unemployment in Silicon Valley is now 8.5%. One-third of households in Silicon Valley have experienced a layoff since January 2001. Consumer confidence and investment are down. It is not a recession in the tech world, it is a depression.

I do not make this point to downplay the piracy issue, nor to suggest that the content industry is not suffering from online piracy. My point is that this Subcommittee should examine digital issues from all sides, not focus solely on how they affect copyright owners. We should look at how our laws affect the technology industry. We should examine whether or not the DMCA is chilling investment and innovation.

The Register has a piece on Conyers-Berman and a look at a recent Sensenbrenner "fact-finding" trip:

Digging through an e-mail backlog, I found an e-mail pointing me to this important article on the pending release/tryout of Mystro, AOL’s mysterious TiVo challenger that has been cloaked in secrecy (see earlier Furdlog ref): Mystro Wants To Play.

AOL Time Warner executives were no doubt grinning when, in this season’s second episode of Sex and the City, Miranda fell in love with her TiVo. The story line on the company’s hit HBO series could not have come at a better time. Mystro TV, AOL TW’s stealth interactive everything-on-demand technology, just happens to be ramping up for its first market trial.

Several senior-level programming executives approached to participate in the trial and an executive at one of the vendors involved tell Cable World that the company plans to test the technology in Columbia, South Carolina, as soon as this month. They say AOL TW is returning to Columbia because it is Time Warner Cable’s oldest subscription-based, on-demand market, having launched HBO on Demand two years ago.

[…] Mystro’s file-serve technology is capable of storing virtually 100% of cable and broadcasters’ weekly programming output within days of being televised, while offering customers fast- forward, pause and rewind functionality.

But it can only record programming it has licensed. And it’s bound to frustrate TiVo-lovers like Miranda, who gleefully zipped through a JetBlue commercial in her zeal to get to her favorite TV show. Not only will Mystro disable fast-forwarding of ads – it lets advertisers insert their messages (for a price) during the pause or fast-forward functions.

[…] The IVG team has remained enormously secretive. At one point, according to someone with direct knowledge, AOL TW even went so far as to pay Google to remove its cache of Mystro references. Industry analyst Jack Myers was also asked by the company to delete a section of a 2002 newsletter that discussed the Mystro project in detail from his archives. Mystro reps were at the NCTA show in Chicago last month, but demos were done privately – and away from the press’s view.

The company won’t comment on Mystro. Regarding claims that Columbia is the first TWC test site, spokesman Keith Cocozza said, “Your information is not correct.”

Targeting pirates for their piracy is difficult, if not impossible, since receiving DirecTV is a passive operation. So instead the company is going after people like Sosa, who have purchased hardware from one of the equipment vendors shut down in the DMCA raids. Critics say that approach is misguided, and is snaring innocent hobbyists and security researchers, some of whom have never even owned a satellite dish. “Innocent people are being caught in DirecTV’s dragnet,” says Jason Schultz, a staff attorney at the Electronic Frontier Foundation, which began receiving calls for help from DirectTV defendants last year.

[…] No one weeps for failed pirates, but some of the equipment that people are being sued over has perfectly legal uses. The clearest example of this is a device marketed as an “unlooper” in piracy circles. Pirates buy it for a “glitching” function designed to repair a satellite TV access card that’s been placed in an infinite loop by one of DirecTV’s electronic countermeasures.

But the unlooper is also a reprogrammable smart card programmer, capable of doing everything a standard ISO-7816 programmer can do, and more.

On June 30, in Intel Corporation v. Hamidi, the California Supreme Court refused to apply an old common law tort to a very modern problem. Intel had alleged that Ken Hamidi, a former employee, committed “trespass to chattels” when he flooded its email system with messages critical of Intel.

The decision is being hailed as a landmark case for free speech in the Internet age. In fact, though, the decision is limited in scope – much more so than media accounts have generally suggested. Most importantly, even after the decision, Intel may still use other legal theories to go after Hamidi – such as interference with prospective economic relations; interference with contract; and intentional infliction of emotional distress.

As I will explain, the California ruling also is not entirely persuasive. For this reason, other states may well disagree with California, and rule the other way when confronted with the issue.

John Palfrey concludes that the Microsoft-SCO deal put SCO into the black this quarter, based on the SEC filings for this quarter.

Ed Foster’s latest GripeLog discusses yet another setback for reverse engineering in the recent UCITA discussions in Virginia that were supposed to improve the law: UCITA: No Reverse in Virginia

Even when the work here is less than inspired, though, it’s the artists’ bravery, their willingness to enter this uncertain area of the art world, that commands our appreciation. Copyright law is a dangerous, capricious beast that is almost entirely under the control of big companies, and it doesn’t matter, really, that the artists may be in the right. Under many interpretations of copyright and trademark legislation, both Dwyer and Forsythe stood a good chance of beating the legal rap.

Dwyer’s [Starbucks/Corporate Whore] logo is unmistakably a parody, a form long protected by the courts. But Dwyer didn’t have the resources to fight Starbucks, so he was forced to settle the matter by agreeing not to post his logo anywhere on his site. Forsythe, with the help of pro-bono attorneys, managed to convince one federal judge that his [Barbie-depicting] work was OK, but Mattel has appealed the case.

Advanced scanning technology makes it possible to reconstruct documents previously thought safe from prying eyes, sometimes even pages that have been ripped into confetti-size pieces. And although a great deal of sensitive information is stored digitally these days, recent corporate scandals have shown that the paper shredder is still very much in use.

“People perceive it as an almost perfect device,” said Jack Brassil, a researcher for Hewlett-Packard who has worked on making shredded documents traceable. If people put a document through a shredder, “they assume that it’s fundamentally unrecoverable,” he said. “And that’s clearly not true.”

A new bill proposed in Congress on Wednesday would land a person in prison for five years and impose a fine of $250,000 for uploading a single file to a peer-to-peer network.

The bill was introduced by Reps. John Conyers Jr. (D-Mich.) and Howard Berman (D-Calif.). They said the bill is designed to increase domestic and international enforcement of copyright laws.

[…] The bill, called the Author, Consumer and Computer Owner Protection and Security Act of 2003, or ACCOPS, would allocate more money to the justice department to investigate copyright crimes: up to $15 million a year, compared with the current budget of $10 million. The bill would also enable information sharing between countries to help in copyright enforcement abroad.

The bill “clarifies” that uploading a single file of copyright content qualifies as a felony. Penalties for such an offense include up to five years in prison and up to a $250,000 fine. In addition, filming a movie in a theater without authorization would immediately qualify as a federal offense.

Updated, again: And an unearthly number of Slashdot comments in a very short time: House Bill to Make File-Sharing an Automatic Felony – and while I haven’t read them all by a long shot, here’s a thought that I haven’t seen elsewhere – remember the tired analogy that says that P2P file sharing is the same as shoplifting a CD? Well, under this bill, that’s no longer true – shoplifting a CD is only a misdemeanor. A public policy initiative to favor shoplifting over P2P?

The more I think about this, the angrier I get. For crying out loud, copyright infringement is already illegal. And now we have representatives suggesting that we should federalize enforcement, rather than leaving it to the copyright holders? I’m sure that makes the RIAA/MPAA would be happy to see federal tax dollars invested in this – more $$ to the bottom line – " for the artists."

Don’t our federal law enforcement agencies already have plenty to do – I mean, last I checked, we are still worrying about terror threats, for example, right? I am really disgusted by this nonsense. While it’s certainly just a sop to their supporters, the fact that it gets discussed at all is an indication of just how out of hand the consideration of this topic has become.

Copyright is still an economic incentive to create; criminal penalties for infringement? These guys are NUTS!

“Soundtrack is going to revolutionize music production for the Internet,” said Lynda Weinman, author, trainer and co-producer of Flashforward. “Web developers are currently forced to license background music for their online animation, or hire outside producers to create original compositions. The interface of Soundtrack is so intuitive that even non-musicians can easily incorporate royalty-free audio production into their workflow, which directly translates into lower development costs and faster turnaround times.”

“I’m totally blown away by the extreme music creation abilities of Soundtrack,” said Charlie Clouser, producer, keyboardist and remixer for artists such as Nine Inch Nails, David Bowie, The Deftones and Rob Zombie. “From the way it automatically blends musical elements on-the-fly, to its super intelligent loop searching, Soundtrack is more powerful than any other loop-based audio software out there, giving professional musicians and music editors a must-have tool in their arsenal.”

Since broadband providers and music labels have not shown a willingness to cooperate, European consumers are unlikely pay for e-music anytime soon.

That is the finding of a Jupiter Research report, which included a survey of 5,000 European consumers, 43 per cent of whom said they are not convinced that paying for a digital music service was a necessity.

Indeed, the report said that many European broadband users sign up for their high-speed connections so that they can more easily participate in illegal file sharing. Jupiter added that this motivation is not only bad for labels, but will pose an increasing problems for broadband Internet service providers (BSPs), putting their networks under greater strain.

Since Mark Mulligan is quoted in the above-cited Register piece, I figured I’d better check his weblog – though there’s nothing on this report, there is this nugget:

An interesting sub plot of the IFPI’s piracy report that no one seems to have picked up on is that the illegal CD market is undergoing its own downturn. In fact it is almost mirroring the legitimate industry’s growth, but with a few years lag: the value of the of the illegal CD market has grown by 12% since 1999 yet in volume terms it has grown by 116%. The effective average price of a pirated CD has halved from $8 in 1999 to $4 in 2002.

The legitimate music market immersed itself in a myriad of price cuts and promotions in what was ultimately a futile attempt to stave off declining sales. It looks like the illegal sector is having to do the same. It seems that, as the cost of blank media drops and penetration of home burners proliferates, consumers are feel compelled to pay less and less for CDs. Unfortunately that is not just bad news for the pirates.

"It’s just a matter of a band having the right to protect the chords it uses. I couldn’t start up my own soft drink company using the exact same formula as Coca-Cola.” – Jill Pietrini, Metallica’s lawyer

Of course, since the the recipe for Coke is a trade secret, this is more of the same nonsense, but it betrays, potentially, just how much thought went into this hack.

A little catching up to do – and a thought on all the recent news on the perceived decline in P2P of late. Sure, it might have something to do with the RIAA threat, but it’s important to remember that the consensus #1 file sharers out there are presently on summer break in the northern hemisphere and are thus cut off from 24-7 broadband – seasonal variations should not be ignored; and it will be interesting to see if the RIAA actually elects to institute new lawsuits when schools are back in session.

Someone‘s having a little fun with Siva and Donna, among many others! (although, if you read her entire post, she knows it’s a joke.) But it gets better!

It really does look like the Metallica WWW site news area. But that’s because it directly pulls the graphics from the site. Even the URL is a joke – http://www1.scoopthis.com/411/met_uf/stc_met_uf.htm. But I’ve saved a screen shot for when Metallica’s hosting company messes with this hack – click though the thumbnail to see the screen. The text is a hoot:

METALLICA DEFENDS RIGHTS AGAINST CANADIAN BAND OVER E, F CHORDS | 7/16/2003

We have elected to pursue legal action against Unfaith, a Canadian band using chords (E & F) traditionally associated with Metallica. We intend to agressively defend our rights in this matter to the fullest extent of the law. It’s nothing personal against the band in question, as we intend to do the same to anyone else using the same chords in that order.

We’re not saying we own the E chord, or even the F – that would be ridiculous. We’re just saying that together, people have grown to associate them with our music, and their continued use in the same song causes confusion, deception and mistake in the minds of the public.

We are fighting this fight for our fans, who don’t deserve to be subjected to this confusion… just as we appreciate their support through this.

Sure it’s fake, but for a minute everyone who reads this thinks “damn, metallica has gone off the deep end” before the higher brain functions kick in. This is one of the best and most clever pieces of satire I’ve ever read. Striking so close to the truth makes it very believable.

Note to Metallica: you might want to consider why people are first going to believe this is true. You have farked with your fan base and aleinated [sic] those of us who were fans of yours since you started. Mp3’s aren’t a problem for you, making bad music and suing fans is what is causing your sales to decline. People don’t want music from bands who’s [sic] members they hate.

Acacia edged slowly into the Internet scene last year, when it began seeking patent licensing revenues from a long list of adult entertainment companies. Its claims initially raised few eyebrows beyond the panicked adult-media businesses, but it became clear that Acacia’s targets ultimately included the biggest Internet multimedia companies, cable giants, and Fortune 500 companies.

The company’s claims are based on a series of patents it contends cover virtually all types of on-demand transmission of compressed audio or video, whether online, over ordinary cable-TV cables, or through other means.

The first mainstream company to license Acacia’s technology was Virgin Radio, a popular Internet radio site and division of the Virgin media conglomerate. That company said it often received frivolous patent claims but that Acacia’s appeared to be valid.

Another Slashdot discussion centers on a student’s paper looking at statistical trends in copyright registrations – open the PDF or DOC link, rather than the URL given in the Slashdot article (unless you like popups and Gator): Statistical Analysis of Copyright Registrations. It’s a little weak, but there are some statistics to consider (or re-consider, since the data is also available) – Data file 1, Data file 2 – you need something called JMP-IN to read them, though)

I mention in the lower part of this posting a whitepaper from RightsCom tooting their horm about their DRM language – according to this LATimes report, there may be some trouble on the horizon: Ruling Boosts InterTrust Claims [pdf]

A federal judge has given a significant boost to InterTrust Technology Corp.’s patent infringement claims against Microsoft Corp., accepting InterTrust’s definitions of critical terminology and chastising Microsoft for failing to substantiate many of its arguments.

The two companies compete in the market for anti-piracy technology – in particular, software to protect digital music, movies and other goods delivered electronically. But with Microsoft winning far more customers for its digital-rights management tools, Santa Clara, Calif.-based InterTrust has shifted its focus to licensing and enforcing its patents.

A key legislator in the House of Representatives said Tuesday that he will release the first “Intellectual Property Crime Index” next week. Rep. Lamar Smith, R-Texas, the chairman of the House subcommittee that oversees copyright law, said the index would accomplish what he asserts the Department of Justice statistics currently don’t do well: track intellectual property crimes and analyze trends over time.

On a related note, Yochai Benkler has graciously sent me a link to get me better educated about the formal notions of pragmatism to correct the confusion I expressed in my ILaw summary. When I get that digested, I hope to be ready to take a shot a some revisions.

In this paper, we shall argue, pace Lessig, that the end-to-end principle does not fully and accurately capture the fundamental relationship between Internet architecture and sound or optimal regulation of the Internet. Layers analysis reconceptualizes the end-to-end principle, yielding a richer and more accurate model of the fundamental architecture of the Internet. The layers principle restates the normative implications of that analysis as a set of principles suitable for use by Internet policymakers. We argue that the layers principle captures all of the content of the end-to-end principle, but that the layers principle does more, providing guidance for regulators where the end-to-end principle is silent or indeterminate. That is, the normative content of the layers principle is a superset of the normative content of the end-to-end principle.

This is a lengthy document that bears careful reading, but it appears that the premise is that the layered architecture of the internet should be used to structure its regulation as well. Regulations that span the layers (the DMCA, as an example) should receive particular scrutiny, because preservation of the integrity of the layers supports innovation by maintaining transparency. I’m going to have to chew on that a bit (and, at 100+ pages in length, I should have plenty of opportunity!) (Update: And a gentle reminder from Donna that this paper has alreadyseensome good commentary!)

Cory Doctorow points to this O’Reilly Net article, MS DRM is pure smoke, that suggests that the published APIs for Micorsoft tools provide more than enough facilities to remove the DRM from WMA files.

Interestingly, Siva has given a different spin on yesterday’s discussion of initiatives to stop filesharing of Christian music: WWJD: What Would Jesus Download?

For a refreshing dose of TechCentralStation that’ll get your blood moving this morning, try this:

Share and Share Alike?. Some new rhetorical tricks to consider – introduction of a piece of economic jargon ("free rider") and the usual leaps of logic – for example:

Copyright is designed to curb such free-riding. As the Supreme Court has explained, copyright, creates the “marketable right[s]” that “suppl[y] the economic incentive to create and generate ideas.” To effectively market these rights, copyright owners must be able to limit access to paying customers. Copyright enforcement actions, such as the actions the RIAA is taking against Internet distributors, thus protects “the engine of free expression.”

Not to mention that we should all aspire to be consumers:

The RIAA’s initiative should be welcomed by everyone since it is critical to protecting incentives to create the high-quality digital media products of the future. If copyright protection is to extend to the Internet, the widespread piracy on the Internet must be checked; through education where possible, but if necessary through traditional means such as legal action. Without effective enforcement, copyright law will be an empty shell on the Internet, and everyone — especially consumers — will lose.

[T]he Bells appear to have persuaded the Federal Communications Commission to rule that they no longer have to share their Internet networks with competitors. Such an action hands complete control of the telephone Internet market over to the Bells and defeats the purpose of the Telecommunications Act before giving it time to work.

It also makes it nearly impossible for rival Internet providers to establish themselves in the local market, which leaves consumers with less choice and higher prices.

The U.S. is the world leader of the technology industry, but has so far conceded its potential leadership in broadband access. Once these circumstances reverse themselves and governments make a stand, we will see great strides made in the Internet and telecommunications sectors. The U.S. Internet market holds too much promise for it to be squandered through a mixture of misguided policies and a lack of conviction.

The prevalance of P2P in the enterprise is cited in this CNet article, with a strong presumption that its only use is illicit file sharing: Study: Corporate P2P use is common. As someone who’s just set up file sharing infrastructures for my research group, albeit with a centralized server for the moment, the presumption of implicit illicitness ascribed to P2P is getting uglier. For example, see this Wired article on Oyez, a source of recordings of Supreme Court hearings.

Townsend and others’ similar experiences, no matter how limited today, point to a slowly widening hole in the Recording Industry Association of America’s (RIAA) recently announced drive to identify and ultimately sue what could be thousands of file swappers online.

Wireless Net access through free, open or publicly available hot spots is proving to be a last bastion of privacy on an Internet where the veil of anonymity can now easily pierced. Wi-Fi access points give anyone who possesses the appropriate computer equipment within a radius of about 300 feet the ability to reach the Internet.

According to the results of a recent survey of more than 6,000 music consumers conducted by The NPD Group, more than one-third of consumers claimed to have purchased fewer CDs this year versus last year. But it’s not all bad news for the recording industry: Consumers report that enhanced CD features, in conjunction with better marketing of those features, would make them more likely to buy music commercially.

Aside from ignorance of the law, some file sharers are making the argument that downloading is actually enhancing the ministry by spreading the word of the Gospel through song, said Eric Garland, CEO of BigChampagne.com, which tracks illicit song downloads off the Web.

“The issues are complex because you have the Ten Commandments, on the one hand, but you have this mandate as a Christian to spread the word of God. And these songs of faith are, in many ways, the modern vehicle for doing that,” Garland said.

[…]

[John] Styll [of several Christian music associations] said the industry will have to get the message across the violating copyright laws cannot be done in the name of ministry.

“Christians are specifically commanded in scripture to uphold the laws of the land. It’s no more right to copy a CD for somebody or send them downloaded music that you obtained illegally in the name of ministry than it is to walk into a store and take a Bible off the shelf and walk out without paying for it and handing it to somebody because they really need to read it,” he said.

Moreover, Donna’s several blog-linked discussions of fair use have served to reinforce some of the key ideas in this paper: What’s So Fair About Fair Use? The notion that stripping derivative uses from copyright protection (moving from the metaphor of property protection via a "property rule" and moving toward a "liability rule") has a number of compelling elements to it, as this paper suggests. The question is, as in so many of these remedies, is how to get there from here.

Grokster on Tuesday released Grokster Pro, the first version of its software that’s free of pop-ups and adware.

Consumers who want to use the software will have to fork over $19.99 for the ad-free experience.

I will need to review the Grokster decision – will this get them into trouble as they become more commercial-looking? Hmmm, I guess not – the court has already found "[d]efendants thus derive a financial benefit from the infringement."

Slashdot points to A Framework for Evaluating Digital Rights Management Proposals [pdf] and gets something of a discussion going: UCB Researchers Critique DRM, Compulsory Licensing. It’s a limited sort of article, though, starting with the peculiar use of the work rival when I’m sure that rivalrous is intended. Essentially, they summarize the problem of feasibility into a small set of questions relative to "technical feasibility, incentives to cheat, burden of monitoring, privacy and the feasibility of legal enforcement." Oh, and flexibility energes as a criterion as well. A reasonable summary of the issues, as well as a summary of current proposals.